by Jeff Goldman
In Cantell v. Commissioner of Correction, 475 Mass. 745 (2016), four inmates appealed from the denial of their petition for class certification to seek a class-wide injunction limiting the use of “special management units” or “SMUs” in state prisons. The Superior Court had denied a motion for class certification, and the Appeals Court had dismissed the plaintiffs’ appeal from the denial as moot because, “when the plaintiffs’ appeal was before that court, it was uncontested that none of the named plaintiffs was still confined in an SMU.” 475 Mass. at 752-53.
The SJC could have fixed the Appeals Court’s mootness error by relying on the established principle that on an appeal from the denial of class certification, the court determines mootness based on whether the claim was moot while before the trial court, regardless of whether the class representative’s claims became moot while the case was on appeal. U.S. Parole Commission v. Geraghty, 445 U.S. 388, 404 (1980); see also Gonzales v. Commissioner of Correction, 407 Mass. 448, 452-53 (1990) (holding that where individual claims become moot prior to class certification motion, class claims are dismissed); 1 William B. Rubenstein, Newberg on Class Actions § 2:10 (5th ed. 2011). In other words, as the U.S. Supreme Court held in a 1980 decision also involving claims by prisoners, the determination of mootness on appeal from a denial of class certification “relat[es] back” to the plaintiffs’ situation as it existed before the trial court. Geraghty, 445 U.S. at 404. Had the SJC applied Geraghty in Cantell, the outcome would have been the same but the Court’s decision much easier: because “[a]t the time of the motion judge’s decision [on the motion for class certification], one of the named plaintiffs . . . remained in an SMU,” there was therefore no mootness problem. Id.
However, none of the briefs in Cantell cited Geraghty, and the SJC resolved the mootness issue by relying entirely on Wolf v. Commissioner of Public Welfare, 367 Mass. 293, 297–298 (1975). Discussing Wolf, the SJC reasoned that the case was:
not moot because the plaintiffs brought this case as a putative class action, and the class action allegations contained in the amended complaint remain operative until a judge has considered and rejected them on their merits. See Wolf  (adopting rule followed by number of Federal courts “that a class action is not mooted by the settlement or termination of the named plaintiff’s individual claim”). This is particularly true where, as the plaintiffs argue is the case here, it is within the defendants’ power voluntarily to cease the allegedly wrongful conduct with respect to any named plaintiff by unilaterally deciding to release him from an SMU. “If the underlying controversy continues, a court will not allow a defendant’s voluntary cessation of his allegedly wrongful conduct with respect to named plaintiffs to moot the case for the entire plaintiff class.” [Wolf] at 299 . The statement applies to the present case: the alleged wrongs set out in the amended complaint continue to affect the putative class of individuals who remain confined to SMUs. In these circumstances, the plaintiffs’ appeal is not subject to dismissal on mootness grounds.
This formulation—“that a class action is not mooted by the settlement or termination of the named plaintiff’s individual claim”—is imprecise and will likely need to be revisited. Although it works in the circumstances of Cantell, it cannot be said as a general matter “‘that a class action is not mooted by the settlement or termination of the named plaintiff’s individual claim.’” In typical cases, and where no other mootness exception applies, if all individual claims become moot before the filing of a class certification motion, the entire case should be dismissed. See, e.g., Gonzalez, 407 Mass. at 450; Cruz v. Farquharson, 252 F.3d 530, 533 (1st Cir. 2001) (“Despite the fact that a case is brought as a putative class action, it ordinarily must be dismissed as moot if no decision on class certification has occurred by the time that the individual claims of all named plaintiffs have been fully resolved.”). Accordingly, it was probably a mistake for the SJC to state that “class action allegations . . . remain operative until a judge has considered and rejected them on their merits.” Whether this is dicta or not, an attorney reasonably could use these statements to support an argument that the mootness of a class representative’s personal claims never matters under Massachusetts law, even if the personal claims were moot before filing a motion for class certification motion, or even that there is never a mootness defense in a class action.
This imprecise language notwithstanding, lower courts should not take Cantell as foreshadowing the SJC’s abrogation of mootness doctrine in class actions. The SJC regularly invokes the mootness doctrine, particularly in cases of constitutional dimension. Further, the SJC recognized in at least two cases after Wolf that the mootness doctrine applies to class claims. In Flint v. Commissioner of Public Works, 412 Mass. 416, 419-20 (1992), the SJC rejected on mootness grounds class action claims for declaratory relief. And in Gonzales, the SJC reversed the trial court’s certification of a class of prisoners (and directed that the case be dismissed unless resuscitated within thirty days by a new plaintiff) because the two named plaintiffs were no longer incarcerated at the time of the class certification motion.
Finally, Wolf does not actually support the parenthetical that the SJC used to summarize it in Cantell. Wolf held merely that the named plaintiffs’ claims were not necessarily moot under the common law because they were “capable of repetition yet evading review.” In fact, Wolf was a prototypical “capable of repetition yet evading review” case: the claim was that the plaintiff and other members of the class were not receiving replacement public assistance checks within the required four-day period, but rather some days later. It would have been virtually impossible for any claimant file a lawsuit and achieve class certification while any single check was outstanding. (The “capable of repetition yet evading review” exception might also have applied in Cantell, although it was not necessary for the SJC to reach the question.)
In short, in its class action-mootness jurisprudence, as in most of its other opinions about justiciability, the SJC has taken a flexible approach, deciding some technically-expired issues on their merits because there are sound, common-law reasons to do so, while refusing to adjudicate stale issues when no traditional exception to mootness doctrine applies. When the next opportunity arises for the SJC to apply the mootness doctrine in a class action, the Court should reiterate its past, sound approach and reject any attempt to read Cantell as requiring a categorical approach to mootness in class cases.
Jeff Goldman is of counsel at Morgan, Lewis & Bockius, LLP. His practice centers on securities litigation and regulatory enforcement defense.